Citation Nr: 1319186 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-17 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1954 to October 1958. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a May 2007 rating decision of the Regional Office (RO). On his June 2008 VA Form 9, the Veteran requested a Board hearing at the local RO. He was afforded this hearing before the undersigned Acting Veterans Law Judge in May 2011. A transcript of the Veteran's hearing testimony is of record. In January 2012, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In June 2008, VA received the Veteran's substantive appeal concerning the denial of his claim of entitlement to service connection for a stomach disorder. However, upon remand, a subsequent April 2013 rating decision granted service connection for gastroesophageal reflux disease (GERD) (claimed as an abdominal condition). The Veteran did not appeal either the initial disability rating or effective date assigned. Therefore, the stomach disorder claim has been resolved, and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2012). The Veteran's Virtual VA paperless claims file was also reviewed and considered in preparing this remand, along with the Veteran's paper claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claim can be properly adjudicated. In January 2012, the Board remanded this claim, in pertinent part, for the RO/AMC to obtain and associate the Veteran's missing service treatment records from the Lackland Air Force Base in San Antonio, Texas, and for the Veteran to be afforded a VA examination and medical opinion. To date, both of these actions have not been fully accomplished. Initially, regarding the records, the RO/AMC received a September 2012 response from the Lackland Air Force Base in San Antonio, Texas, informing VA that no records were available. In response, the RO/AMC did not inform the Veteran of the unavailability of these records and did not issue a Formal Finding regarding the unavailability of these records. The RO/AMC sent the Veteran letters dated in November 2012 and March 2013, but these letters did not inform the Veteran that his service treatment records from the Lackland Air Force Base were unavailable. This action is necessary before the Veteran's claim can be decided on the merits. Thus, the Board's remand directives were not satisfied. Regarding the examination, the Veteran was scheduled for a VA spine examination in July 2012, in which the VA examiner provided a negative medical nexus opinion. However, in providing his opinion, the examiner did not consider and address the Veteran's and his wife's competent lay statements regarding the Veteran's in-service back injury and his pain ever since discharge. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). This action was specifically requested in the Board's remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). A remand by the Board confers on the Veteran the right to VA compliance with the terms of the remand order and imposes on the VA Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the United States Court of Appeals for Veterans Claims (Court) held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Thus, this claim must therefore be remanded to ensure compliance with the Board's previous remand directives. Lastly, as directed in the Board's prior remand, additional VA treatment records for the Veteran were associated with the Veteran's Virtual VA paperless claims file from August 2010 to February 2012. Nevertheless, in light of the need to remand for other matters, as it appears that the Veteran receives continuous treatment at the VA, the RO should obtain additional VA treatment records from February 2012 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC should obtain additional VA treatment records from February 2012 to the present. 2. With respect to the missing service treatment records from the Lackland Air Force Base in San Antonio, Texas, the RO/AMC must make a written determination that further attempts to obtain the records would be futile. This determination should be placed in the claims file. 3. With respect to the missing service treatment records from the Lackland Air Force Base in San Antonio, Texas, the RO/AMC must provide written notice to the Veteran with the following information: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain; and (iv) A notice that the Veteran is ultimately responsible for providing the evidence. 4. The RO/AMC should return the claims file to the examiner who conducted the July 2012 VA spine examination for an addendum medical opinion. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the July 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After reviewing the record, the examiner should offer an opinion on whether it is at least as likely as not that the Veteran's current degenerative disc disease of the spine is related to his active military service. The examiner must give due consideration to all lay evidence provided in support of the Veteran's claims, including his statements and hearing testimony, as well as the lay statement provided in 2007 by his wife. A complete rationale for all opinions expressed should be provided. 5. In the interest of avoiding future remand, the RO/AMC should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for the opinion. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 6. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ J.N. MOATS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).